The Ontario Human Rights Commission (“OHRC”) is conducting a survey on “Canadian experience” requirements for jobs.

The OHRC has prepared two surveys – one for employers and one for job seekers who have faced “Canadian experience” requirements in job ads or in interviews. You can fill out the survey without giving your name, or you may decide to give your contact information so the OHRC can ask you more questions if they are needed.

The OHRC intends to use what they learn from these surveys to assist job seekers to understand their rights and to help employers to understand their obligations under the Ontario Human Rights Code.

Requiring “Canadian experience” can hurt the chances of those who have not worked in Canada. Concerns have been raised that “Canadian experience” requirements create barriers for newcomers and others who have only worked in other countries.

There are a variety of reasons why some employers believe they are justified in choosing only applicants who have worked in Canada. Some use “Canadian experience” rules out of habit or because it is easier to track down references. Others use it because experience with and understanding of the Canadian context may be important to the job. In any case, employers requiring “Canadian experience” should consider whether the requirement is justified, and should be aware of the risk of a human rights complaint.

The Ontario Ministry of Labour has announced that it is taking steps to increase its enforcement of the Employment Standards Act, 2000.

Central to the new enforcement initiative is the hiring of an additional 18 Employment Standards Officers and staff, and the conducting of more proactive workplace inspections. Practically speaking, this means that ESOs will attend at provincially-regulated Ontario employers’ places of business without a complaint being filed, and without any warning, to conduct inspections of the businesses’ practices, policies, and records for compliance with the ESA. In such cases, employers are required to co-operate with the inspection and to produce documents requested by the ESO. In turn, ESOs have the power to issue compliance orders or orders to pay and, in some cases, to lay charges against the employer.

Employment standards investigations are time-consuming and may be costly for businesses, both in terms of the resources that must be devoted to the audit itself and, potentially, in rectifying ESA compliance issues and paying amounts owing under any orders issued.

The Ontario Human Rights Commission has released its report entitled Minds that matter: Report on the consultation on human rights, mental health and addictions.

Minds that Matter reports the findings from the OHRC’s province-wide consultation on the human rights issues experienced by people with mental health disabilities or addictions, summarizing the insights gleaned from more than 1,500 individuals and organizations across Ontario that it surveyed. The report also sets out recommended actions for government, housing providers, employers, service providers and other parties, as well as a series of OHRC commitments towards eliminating discrimination based on mental health and addictions in Ontario.

Employers will be most interested in chapter 12, “Employment”, which sets out a number of experiences from individuals with mental health or addiction issues. In brief, many individuals with mental health and addiction issues expressed concerns that they continue to experience discrimination in the employment hiring process and discrimination and harassment in the workplace in the course of employment. Some of the specific experiences noted included the following:

Gaps in employment history due to periods of disability may be hard to explain during the employment process and may create a barrier to being hired.

Systemic barriers to employment were created by having non-criminal contact with police relating to mental health or addiction issues recorded and disclosed as part of a police record check.

The rules around workplace violence risk assessments and the disclosure of personal information about employees under the Bill 168 amendments to the Ontario Occupational Health and Safety Act may negatively affect people with psychosocial disabilities if they are applied improperly, especially if employees with past, present or perceived mental health issues are assumed incorrectly to be a danger to other workers.

In response to these experiences and others, the OHRC made the following recommendations to employers:

All employers should develop human rights policies and procedures outlining their organization’s obligations under the Human Rights Code, including the duty to accommodate people with psychosocial disabilities to the point of undue hardship.

Employers should ensure their human rights policies identify that people with mental health issues and addictions are protected under the ground of disability, and eliminate systemic barriers in the workplace (such as in their organizational culture) that may exclude or disadvantage people with mental health issues and addictions.

All employers should train their employees and managers on their responsibilities under the Code regarding the human rights issues that affect people with mental health disabilities and addictions. This training should address preventing and responding to discrimination and harassment, systemic issues affecting people with psychosocial disabilities and the duty to accommodate.

The OHRC committed to discuss with the Ministry of Labour the impact of disclosure requirements under the OHSA on people with mental health issues, and consider how this issue could be monitored and addressed.

Employers should proceed cautiously in terminating the employment of an employee that they know will be imminently undergoing a major medical procedure and requiring time off work. Even if the medical procedure and time off are not the primary reasons for the termination, they may be found to be factors in the termination.

Timothy Pritchard began employment with the Commissionaires Great Lakes (the “Commissionaires”) on March 10, 2008 as a Director of Professional Services.

Pritchard was diagnosed with severe arthritis. On May 6, 2010, he informed his employer that he would be having hip replacement surgery on June 16, 2012 and that he would require eight to twelve weeks off work to recover. Pritchard proposed that his time off be funded by 23 days of accumulated sick time, two weeks of accumulated vacation, and an advance on his annual vacation time.

On June 7, 2010, Pritchard was asked by a member of the Commissionaires’ executive team to review a copy of his offer of employment. When Pritchard asked if his employment was being terminated, he was advised that it was not, but that his role was being reviewed at the next executive meeting.

On June 9, 2010, the Commissionaires advised Pritchard that his employment was being terminated effective immediately. As the Chief Executive Officer was away at that time, Pritchard did not receive a termination letter until June 22, 2010. In accordance with the terms of Pritchard’s offer letter, the Commissionaires provided him with three months’ salary in lieu of notice. Pritchard was not, however, paid out any sick days as, according to the Commissionaires’ policy, sick days have “no monetary value” after the end of employment. Several months later, on September 28, 2010, the Commissionaires posted for a “Manager, Sale of Training” position, which was similar to Pritchard’s position.

Pritchard brought a human rights application claiming discrimination on the basis of disability in the termination of his employment.

At the hearing, Pritchard questioned the timing of his termination, asserting that his direct manager and everyone around him knew his surgery was coming. Witnesses for the Commissionaires testified that when business declined, the Commissionaires needed to reduce overhead in the London region, where Pritchard was employed. The Commissionaires admitted that they were aware of Pritchard’s hip replacement surgery and his need for time off, but denied that it was a factor in their decision to terminate his employment. Finally, the Commissionaires noted that the new position posted in September 2010 was for Toronto, not the London area.

Vice Chair Brian Eyofson of the Ontario Human Rights Tribunal held that Pritchard’s medical condition, severe arthritis requiring a hip replacement and absence from work for approximately 2.5 months, constituted a disability under the Human Rights Code. The Tribunal also found that Pritchard’s pending disability-related absence from work was a factor in the termination of his employment: the termination of Pritchard’s employment occurred with considerable haste, five business days before his scheduled hip replacement surgery. The Commissionaires were aware of the timing of Pritchard’s surgery and the time off he required. Moreover, while the Commissionaires paid Pritchard three months of salary upon termination in accordance with his offer letter, by terminating Pritchard’s employment when it did, the Commissionaires avoided paying him the over four weeks of accumulated sick days that he would have received had he remained employed.

As Pritchard reemployed following the Labour Day weekend, the Tribunal ordered the Commissionaires to pay Pritchard the difference between his salary at the Commissionaires and his new salary from the date upon which he reemployed until the date that this new employment ended in January 2011. The Tribunal also awarded Pritchard $10,000 for injury to dignity, feelings, and self-respect, citing the embarrassment Pritchard experienced when his employment was terminated, the stress of losing employment five days before hip replacement surgery, and the impact on his recovery from surgery of having to look for new employment.

Based on data collected from parents of 10,810 children in 2010 and 2011, Statistics Canada’s study reveals that 90% of Canadian children outside Quebec had working mothers who took some type of leave following the birth of their child. On average, the leave lasted 44 weeks. Only 26% of these children had working fathers who took leaves, with the average leave being 2.4 weeks.

The situation differed quite dramatically in Quebec, with almost 99% of working mothers taking some form of leave; on average, the leave lasted 48 weeks. Fathers took leave in 76% of cases in Quebec.

83% of mothers outside Quebec took paid leave, and 21% reported some unpaid leave. The average paid leave in such cases was 40 weeks, while the average unpaid leave was 4.5 weeks. In Quebec, 97% of mothers took paid leave, with 21% reporting some unpaid leave.

Not surprisingly, a number of factors, including socio-economic, child and maternal health characteristics, and self-employment, were associated with whether mothers and fathers took leave and the length of the leaves.

A recent Ontario decision serves as an important reminder to employers : if an employee fails to provide medical documentation in a timely manner, any discipline imposed must take into account the entire context, including the employee’s length of service. Employers – particularly those who are unionized – who wish to consider terminating the employment of long-service employees for failure to provide medical documentation should ensure that they repeatedly follow up with such employees about providing the documentation prior to terminating.

Mr. Ferreira started working for the Yellow Pages Group Company as a sales consultant in 1989. On January 12, 2009, Mr. Ferreira began a short-term disability medical leave with a diagnosis of severe hypertension and work-related stress. On January 20, 2009, Mr. Ferreira attended a medical assessment with his physician and faxed a completed Attending Physician’s Statement to Yellow Pages.

Yellow Pages’ benefit administrator sent Mr. Ferreira’s physician a follow-up questionnaire on February 4, 2009, requiring more information. The physician did not complete the questionnaire and, as a result, the benefits administrator terminated Mr. Ferreira’s short-term disability benefit payments on February 16, 2009. The benefits administrator also advised that if additional medical documentation was not received from Mr. Ferreira by March 3, 2009, his file would be closed.

On February 18, 2009, Yellow Pages sent a letter to Mr. Ferreira advising him that since his disability claim had been denied, he was obligated to return to work by February 20, 2009. Mr. Ferreira followed up with Yellow Pages by phone. During the call, Yellow Pages advised Mr. Ferreira that his employment would be terminated unless he returned to work or provided the required medical evidence to support his absence by March 3, 2009.

Mr. Ferreira attended at his physician’s office on February 25, 2009. The physician wrote a letter to the benefits administrator explaining that Mr. Ferreira remained unable to work and sent the letter by regular mail to the benefits administrator on March 2 or 3. As the letter was not received by the deadline, on March 5, 2009, Yellow Pages terminated Mr. Ferreira’s employment. Although Mr. Ferreira immediately faxed a copy of his doctor’s letter to Yellow Pages when he was advised of the termination, this had no impact on Yellow Pages’ decision.

Mr. Ferreira grieved the termination through his union, the Canadian Office and Professional Employees Union. The arbitrator dismissed the grievance. In the arbitrator’s view, Mr. Ferreira knew he needed to arrange for his physician to provide medical information within a certain time frame or there would be serious sanctions. Mr. Ferreira unreasonably left the matter in his doctor’s hands and he did so at his peril.

The Divisional Court dismissed the Union’s application for judicial review of the arbitrator’s award.

The Court of Appeal allowed the appeal and remitted the matter back to a different arbitrator for reconsideration. In the Court of Appeal’s view, the arbitrator failed to consider the matter contextually and to balance the nature and seriousness of Mr. Ferreira’s misconduct with the severity of the sanction imposed – termination of employment for a delayed submission of medical documentation in the context of an unblemished 20-year employment relationship.

The Ontario Court of Appeal has held that an employee who found a new job after two weeks was entitled to the full six months’ pay in lieu of notice under his written employment contract because the principle of “mitigation” had not been specified in his contractual termination clause.

Peter Bowes was hired by Goss Industries Inc. as Vice-President, Sales and Marketing in the fall of 2007. Bowes signed an employment agreement in September 2007 and began working for Goss in October 2007. The employment agreement provided:

“The Employee’s employment may be terminated in the following manner and in the following circumstances . . . (c) By the Employer at any time without cause by providing the Employee with the following period of notice, or pay in lieu thereof: . . . (iii) Six (6) months if the Employee’s employment is terminated prior to the completion of forty-eight (48) months of service . . .”

The employment agreement was silent with respect to whether, if the employee found a new job within that six months, his “mitigation” income would be deducted from the six months of pay in lieu of notice.

On April 13, 2011, Goss terminated Bowes’ employment without cause. Bowes started a new job on April 25, 2011 with another employer at the same salary that he had been paid by Goss. When Goss found out, it stopped paying Bowes and took the position that he was only entitled to receive the minimum entitlement under the Employment Standards Act, 2000 of three weeks’ pay in lieu of notice because he had fully mitigated his loss by finding a new job.

The Court of Appeal reasoned that because a contractual termination provision “caps” an employee’s termination entitlement, often at an amount less than the common law notice that the employee would have received without a written employment contract, Goss should not be permitted to take advantage of Bowes reemploying quickly to reduce its payment obligation. The court noted:

“It is noteworthy that in the sports, entertainment and senior management fields it is commonplace for such contractual provisions to not be subject to mitigation. Where the rich, famous, and powerful are involved, there is no suggestion that such payments are unfair to the other contracting party [the employer], even where there is, in effect, total mitigation of the loss. A contract is a contract, and it is expected that it will be honoured. Nothing short of this can be countenanced where the terminated employee is less privileged.” (para. 52)

In the Court of Appeal’s view, there is nothing unfair about requiring employers to be explicit – specifically stating in the employment contract that mitigation will apply – if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages. What is unfair, according to the Court, is for an employer to agree upon a fixed amount of damages with an employee and then at the point of dismissal inform the employee that future earnings will be deducted from the fixed amount.

On this basis, the Court of Appeal ordered Goss to pay Bowes the full six months of salary in lieu of notice, even though Bowes had been unemployed for only two weeks.

A number of earlier trial-level decisions had held that mitigation is automatically “read in” to contractual termination terms even if mitigation is not expressly stated. The Bowes case appears to overturn those previous decisions. The result in any future case will depend on the particular language of the employment contract at issue, but it appears that, at the very least, the principle of mitigation will not be automatically read in. As a result, Ontario employers should review their contractual termination provisions and consider whether they wish to specify that if the employee finds a new job during the contractual termination notice period, the “mitigation income” will be deducted from any contractual pay in lieu of notice in excess of Employment Standards Act entitlements. It is well-settled, though, that mitigation will not apply to pay in lieu of notice and severance pay under the Employment Standards Act.

The Ontario Court of Appeal has recently restored an arbitrator’s decision granting a terminated executive his bonus despite his misappropriation of the employer’s money and resources during the period in which the bonus was earned.

Leonard Rossetto was the Vice President of a division of Mady Development Corp. (“Mady”). Between September and November 2007, Rossetto diverted Mady’s labour and materials and used Mady’s funds to renovate his house. Mady discovered the wrongdoing and terminated his employment in December 2008. Mady subsequently sued Rossetto for damages for conversion, breach of employment contract, unjust enrichment, and breach of fiduciary duty. Rossetto counterclaimed in respect of bonuses for 2007 and 2008 equal to 30% of Mady’s profits after overhead.

The parties submitted the dispute to arbitration where Mady was awarded $546,452 for breach of fiduciary duty and for delays to one of its projects resulting from Rossetto’s breach. The arbitrator also awarded Rossetto $364,661.33 in satisfaction of unpaid bonuses for 2007 and 2008. The arbitrator held that the bonuses were an integral part of Rossetto’s compensation and that a dishonest employee is still entitled to be paid for the work that he has done.

Mady appealed the arbitrator’s award of the bonus to the Ontario Superior Court of Justice. Justice Allen overturned the bonus award on the basis that a fiduciary is not entitled to compensation during the period of wrongdoing.

Rossetto appealed the decision to the Ontario Court of Appeal, which reinstated the arbitrator’s award of the bonus. Justice Hoy held that errant fiduciaries do not forfeit their entitlement to bonus compensation in all situations. A fiduciary’s entitlement to a bonus depends on the particular circumstances of the case. There is a distinction between a principal-agent and employer-employee relationship. While a principal will not be required to pay an agent commission for transactions that are in breach of a fiduciary duty, an employer is not free to withhold payment of wages due for past performance, even where the past performance may have involved a time when the employee was acting in breach of his fiduciary duty. In this case, the bonus was significant and non-discretionary – Rossetto was as entitled to the bonus as he was to his salary for the period worked.

Although there may be some situations in which employees in a fiduciary relationship are disentitled to a bonus due to a breach in their duty, employers should be aware that the employee’s breach will not necessarily preclude entitlement to a bonus.

The employee, a 45-year-old Vice President with 23 years of service at a small privately held Toronto-based business, drove the company’s pickup truck to a meeting in Alliston, Ontario. After the meeting, the employee stopped at a restaurant where he drank four beers during lunch. He then got back in the truck and drove towards Toronto. While driving, the employee lost control of the truck and was involved in an accident, sustaining a broken neck and other life threatening injuries. Fortunately, no other vehicles were involved in the crash. The police subsequently charged the employee with a number of criminal offences related to drunk driving. The employee pled guilty to one of the charges. After the employee was released from hospital, the employer informed him that his employment was terminated for just cause. The employee sued the employer for wrongful dismissal.

Justice Whitaker of the Ontario Superior Court of Justice stated that a single isolated incident of intoxication does not generally warrant just cause for dismissal. However, as in all just cause allegations, a contextual approach must be applied. Justice Whitaker considered the following factors in the employee’s favour: the employee was middle aged, without a university degree or other certification, and had spent most of his working life with the employer. The employee also had a clean record of discipline and no performance issues prior to the incident.

From the employer’s perspective, the employee was guilty of serious misconduct in the course of employment while operating the employer’s vehicle and which attracted criminal sanction. Justice Whitaker stated:

Increasingly, drunk driving is considered now within society at large to be a very serious criminal offence which attracts significant minimum sentences. Drunk driving is potentially lethal conduct and in this case the employee is extremely lucky to have survived and to not have injured or killed others travelling on the public highway. To reiterate, the misconduct here is not just intoxication while working, but rather drunk driving on a public highway with the employer’s vehicle.

Justice Whitaker held that the employee’s conduct was prejudicial to the employer’s business. Specifically, the employee’s conduct put the employer at risk of claims from third parties of vicarious liability, as well as increased WSIB premium costs. In addition, Justice Whitaker noted that the employer’s customers and suppliers might think less of the employer if they were of the view that the employer could not properly control and direct its employees. Furthermore, the employee’s conduct also damaged the employer’s property.

On balance, Justice Whitaker concluded that the employer had met its onus of demonstrating just cause for dismissal of the employee and the employee’s claim was dismissed with costs payable to the employer on a partial indemnity basis. This case confirms that it is possible for an employer to successfully claim just cause in order to defend against a wrongful dismissal claim made by a long-service employee if the employee has engaged in a single, serious, incident of misconduct.